People v. Zuccarini

• Citation: 431 N.W.2d 446,172 Mich.App. 11
• Decision Date: 23 November 1988
• Docket Number: Docket No. 99717
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Mitchell ZUCCARINI, Defendant-Appellant. 172 Mich.App. 11, 431 N.W.2d 446
• Court: Court of Appeal of Michigan (US)

Page 446

431 N.W.2d 446

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Mitchell ZUCCARINI, Defendant-Appellant.

Docket No. 99717.

172 Mich.App. 11, 431 N.W.2d 446

Court of Appeals of Michigan.

Submitted June 7, 1988.

Decided Oct. 3, 1988.

Released for Publication Nov. 23, 1988.

[172 MICHAPP 12] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Crim. Div., Research, Training and Appeals, and Susan Randolph, Asst. Pros. Atty., for the People.

[172 MICHAPP 13] Douglas Hamel, and Frank Singer, of counsel, Detroit, for defendant-appellant on appeal.

Before KELLY, P.J., and GRIBBS and SIMON, ^* JJ.

SIMON, Judge.

Following a bench trial, defendant was convicted of possession of cocaine in an amount of 50 grams or more, but less than 225 grams, M.C.L. Sec. 333.7403(2)(a)(iii); M.S.A. Sec. 14.15(7403)(2)(a)(iii). He was sentenced to ten to twenty years' imprisonment. Defendant appeals as of right, seeking resentencing and challenging the admissibility of evidence seized and statements he made during the execution of a search warrant at his home on August 15, 1986. We affirm.

Defendant first claims that his statements on where the cocaine was located in his home should have been suppressed as the "fruit of the poisonous tree" stemming from his illegal arrest during the execution of the search warrant. Defendant raised this issue in a pretrial motion to suppress the statements, and the parties agreed that the trial court could rule on the motion as an evidentiary objection during the course of the bench trial. The court found that defendant was lawfully detained, and not arrested, at the time of the search, and we can find no clear error in this finding. See People v. Toodle, 155 Mich.App. 539, 542-543, 400 N.W.2d 670 (1986).

In Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595, 69 L.Ed.2d 340 (1981), the United States Supreme Court held that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the [172 MICHAPP 14] occupants of the premises while a proper search is conducted."

Here, defendant was the first of five individuals at his home with whom the police came in contact during the execution of the warrant. His detention and handcuffing occurred at a time when the police were attempting to gain control over the area to be searched. According to Officer Patricia Goulah, she took control of defendant outside the house near the back door while other officers went inside. After defendant assisted her in chaining up three dogs in the yard, Officer Goulah handcuffed defendant mainly for safety reasons and because she heard what sounded like a lot of people running inside the house. Officer Goulah then took defendant inside the house where the officer in charge, Corporal Hohl, advised defendant of his Miranda ¹ rights and explained the search warrant to him. Afterwards, defendant showed Corporal Hohl where the cocaine was located.

This evidentiary record supports the trial court's finding that defendant was detained, but not arrested. We conclude that Officer Goulah's handcuffing of defendant was a reasonable, limited intrusion of his liberty under the circumstances then present. The search for narcotics is the kind of transaction which may give rise to sudden violence, and the minimization of risk of harm to both the police and the occupants by exercising unquestionable command over the situation is a legitimate interest which must be considered in determining whether the detention was justified. 452 U.S. at 702, 101 S.Ct. at 2594. At trial, Officer Goulah articulated sufficient facts to justify her safety concern. Once inside the house, the fact that defendant was then advised of his Miranda rights by Corporal Hohl did [172 MICHAPP 15] not necessarily mean that he was under arrest. See People v. Hill, 429 Mich. 382, 394, 415 N.W.2d 193 (1987) (discussing the focus test applied by some panels of this Court to the issue of whether a Miranda warning was required at the time of the search in this case). To the contrary, the testimony introduced prior to the court's ruling indicated that Corporal Hohl sufficiently informed defendant that whether or not he would be arrested depended on the result of the search.

Since we affirm the trial court's finding that defendant was not arrested, it follows that we must reject defendant's argument that his statements and other evidence seized were inadmissible as the "fruit of the poisonous tree" stemming from an illegal arrest.

Defendant also claims that the evidence of the items seized should have been suppressed because the warrant was overly broad. We disagree. Under both federal constitutional law and Michigan search and seizure law, the purpose of the particularization requirement in the description of items to be seized is to provide reasonable guidance to the executing officers and to prevent their exercise of undirected discretion in determining what is subject to seizure. M.C.L. Sec. 780.654; M.S.A. Sec. 28.1259(4); People v. Taylor, 93 Mich.App. 292, 287 N.W.2d 210 (1979), lv. den. 408 Mich. 928 (1980); United States v. LeBron, 729 F.2d 533, 536 (CA 8, 1984). The degree of specificity required depends on the circumstances and types of items involved. United States v. Kail, 804 F.2d 441, 445 (CA 8, 1986).

We have considered each of defendant's objections to the descriptions in the search warrant and conclude that the warrant, on its face, was not overly broad. The descriptions "All money and property acquired through the traffiking [sic] of narcotics" and "Ledgers, records or paperwork [172 MICHAPP 16] showing traffiking [sic] in narcotics" were sufficiently particular to pass constitutional muster since the executing officers' discretion in determining what was subject to seizure was limited to items related to drug trafficking. See LeBron, supra, p. 538 (noting that a reference in a warrant to the specific illegal activity gives a substantial limitation to the executing officers' discretion); United States v. Savoca, 761 F.2d 292 (CA6, 1985), cert. den. 474 U.S. 852, 106 S.Ct. 153, 88 L.Ed.2d 126 (1985) (warrant commanding seizure of "US Currency" not overly broad where there is probable cause to support that breadth). The warrant here was supported by an affidavit setting forth probable cause to believe that defendant's house was being used for illegal drug trafficking and that defendant was involved in this activity. Testing the description in the warrant of the items to be seized, as we must, in a "commonsense and realistic manner," United States v. Gomez-Soto, 723 F.2d 649, 653 (CA 9, 1984), cert. den. 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 831 (1984), it is clear that the officers' discretion was limited to searching for items connected to that illegal activity.

Defendant's objection to the description "Paperwork showing residency" is similarly without merit since the description provided a substantial limitation on the executing officers' discretion. See United States v. Honore, 450 F.2d 31, 33 (CA 9, 1971), cert. den. 404 U.S. 1048, 92 S.Ct. 728, 30 L.Ed.2d 740 (1972). Finally, we find that the description "All firearms" was not overly broad since specific facts were alleged in the affidavit indicating that the house was the site for drug trafficking, and it was further alleged that firearms are often kept by persons involved in drug use for protection and potential use during drug transactions. A general description, such as "weapons," is not overly broad if probable cause exists to allow such breadth. Savoca, supra, p. 298.

[172 MICHAPP 17] Defendant next contends that the seized evidence should have been suppressed because, it is claimed, the executing officers did not comply with the "knock and announce" statute, M.C.L. Sec. 780.656; M.S.A. Sec. 28.1259(6). Defendant did not raise this issue below and, thus, it is not properly preserved for appeal. People v. Juarez, 158 Mich.App. 66, 71, 404 N.W.2d 222 (1987). In any event, the entry is lawful if there is substantial compliance with the requirements of the statute. People v. Slater, 151 Mich.App. 432, 440, 390 N.W.2d 260 (1986), and see People v. Charles Brown, 43 Mich.App. 74, 90, 204 N.W.2d 41 (1972). The testimony on the manner in which the executing officers entered defendant's house after identifying themselves to defendant as he stood outside the back door demonstrates sufficient compliance with the statute, as applied to def...